SC v. OE1 AND ANOTHER

SC v. OE1 AND ANOTHER

The tribunal could not rely on Article 33(1)(a) to correct non‑clerical omissions, but the Licence and injunctive claims had been presented in the arbitration and were omitted from the dispositive part of the Award; accordingly the tribunal was entitled under Article 33(3) to make an additional award to address those claims. The Addendum therefore validly corrected and supplemented the Award; the setting aside application failed and enforcement of the Award as amended is allowed; later additional grounds not raised in the setting aside application were waived and rejected.

Citation
[2020] HKCFI 2065
Parties
Plaintiff (hcct 48) / Defendant (hcct 66): SC; 1st Defendant (hcct 48) / 1st Plaintiff (hcct 66): OE1; 2nd Defendant (hcct 48) / 2nd Plaintiff (hcct 66): OE2
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
24 August 2020
Case Number
HCCT48/2019
Procedural Posture
Construction and Arbitration Proceedings (applications to Set Aside and for Enforcement of Arbitral Award) / Decision on Originating Summonses for Setting Aside and Leave to Enforce Arbitral Award
Outcome
Setting aside application dismissed; leave to enforce Award as corrected by Addendum granted; opposition to partial enforcement dismissed; costs awarded on indemnity basis to successful party
Legal Topics
Correction and Interpretation of Arbitral Awards (article 33), Additional Awards, Setting Aside Arbitral Awards, Enforcement of Arbitral Awards, Jurisdiction of Arbitral Tribunal, Public Policy Defence, Injunctive Relief, License Entitlement
Source Language
EN
Arbitration Civil Procedure Contract Intellectual Property Enforcement of Judgments and Awards Correction and Interpretation of Arbitral Awards (article 33) Additional Awards Setting Aside Arbitral Awards +5 more

Case Brief

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Parties

SC

Plaintiff (hcct 48) / Defendant (hcct 66)

OE1

1st Defendant (hcct 48) / 1st Plaintiff (hcct 66)

OE2

2nd Defendant (hcct 48) / 2nd Plaintiff (hcct 66)

Procedural Posture

Construction and Arbitration Proceedings (applications to Set Aside and for Enforcement of Arbitral Award) / Decision on Originating Summonses for Setting Aside and Leave to Enforce Arbitral Award

Legal Issues

  1. 1 Whether the arbitral tribunal had power under Article 33(1)(a) of the Model Law to correct the Award by the Addendum
  2. 2 Whether the tribunal could make an additional award under Article 33(3) to deal with claims presented but omitted
  3. 3 Whether the tribunal was functus officio when it issued the Addendum

Ratio Decidendi

The tribunal could not rely on Article 33(1)(a) to correct non‑clerical omissions, but the Licence and injunctive claims had been presented in the arbitration and were omitted from the dispositive part of the Award; accordingly the tribunal was entitled under Article 33(3) to make an additional award to address those claims. The Addendum therefore validly corrected and supplemented the Award; the setting aside application failed and enforcement of the Award as amended is allowed; later additional grounds not raised in the setting aside application were waived and rejected.

Court Disposition

Setting aside application dismissed; leave to enforce Award as corrected by Addendum granted; opposition to partial enforcement dismissed; costs awarded on indemnity basis to successful party

Orders

  • Setting Aside Application (HCCT 48/2019) dismissed
  • Leave to enforce the Award as corrected by the Addendum granted (Enforcement Application allowed)